According to official historic tradition, the Latin notary made his first appearance around the end of the first millennium. It is impossible to pinpoint the exact decade or century, since the origin of the notarial profession, as many other institutions, was not self-generated but rather the result of the gradual evolution of an ancient writing profession, the members of which were called the tabellio and the notarius, devoted exclusively to the mighty, the rich, and the merchant class.

Some believe that on returning from the Crusades, St-Louis, the Good King, found his court congested with unresolved cases, justice in those days being the sole prerogative of the monarch. He took up his sceptre and quickly began hearing cases in order to return his subjects to their work or regular business. It soon became clear to him that many of the parties appearing before him had already agreed to terms of settlement.

To increase efficiency, he determined to handle litigious cases himself and refer to the clerks of his court all those parties who had agreed to settle their disputes. Instruments evidencing the terms of their agreement were drafted and sealed, with the legal authority of the king attaching thereto.

It has been said that 60 of these clerks were appointed as the first royal notaries. They were not merely clerks but persons who truly knew the legal system and the law, and who had the capacity to give proper legal counsel and advice as they drafted. Those drafts are believed to have been presented to the King before they became official.

We know for certain that in thirteenth-century Europe, under the influence of northern Italy's Scuola di Notariato, created in Bologna in 1228, the notarial professional was well and truly acknowledged and the need to submit instruments to the court for legal effect disappeared.

The appointment of notaries was a prerogative of monarchs, sovereigns, and the Pope, and the model quickly spread throughout Europe.

Finally, with the Napoleonic Loi 25 Ventôse année XI of 1803, the rules of the modern notarial profession were established, and were either imposed upon, or willingly adopted by, all other European countries.

The notarial profession was exported by European imperial powers to their colonies, including the so-called "New World," with one notable exception: the British Empire. This exception is the result of two fundamentally different major legal systems of law in the world: the civil law and common law.

England and the notary

Being an island, England (or the United Kingdom) developed its system of law independently from mainland Europe. The first notaries were introduced into England from continental Europe under papal authority, but in 1279, the Pope authorized the Archbishop of Canterbury to appoint notaries. Some two centuries later, relations soured between Henry IV and the Pope and one of the many consequences of religious reform was the transfer to the Crown, in 1533, by the British Parliament, of the power to appoint notaries. This power was later delegated to the Court of Faculties in 1801, which still appoints notaries today.

Notaries of the Latin type can be found today in England, though few in number (some forty) and all located in the "City." They act as a link between continental civil law institutions and the common law institutions of the United Kingdom. They are called "scriveners" and have legal training, and although they draft contracts (as do Latin-type notaries), they lack public-officer status and their writings do not have the probative value of Latin-type notarial instruments. Interestingly enough, their services are intended for foreign countries, where the instruments they prepare serve as attestations directed at judicial or other public authorities in the country where they are to be used.

As two different types of notary have developed since the end of the sixteenth century in European countries, England, and their respective empires, I will differentiate between them by designating the civil law notary of continental Europe as "Latin notary" and the common-law type as "notary public," even though many Latin notaries are designated as notario publico and notaio publico.

Quebec notaries

The first notary to settle in French North America was appointed by Louis XIV and arrived in 1663, more than 130 years after Jacques Cartier first discovered what is now known as Canada.

The law of the land was, of course, the French Coutume de Paris, traditional law derived from Roman and Germanic laws. Under the French colonial administration, notaries rapidly and inevitably became legal professionals and business advisers. In those days, only a few inhabitants of New France had any education or writing ability, and advocates (lawyers of litigation) were expressly forbidden to settle in the colony by royal interdiction, the King having a very low opinion of their usefulness. It is interesting to note that advocates were prohibited and barred from the land even during the first fifteen years of British administration, i.e. until 1775.

1760-1867

To understand the survival of the Latin notarial profession in Quebec, and only in that province in Canada, we must again look to history.

Events following victory on the Plains of Abraham were the direct consequence of an astonishing fact: the British had no definite plan in mind when they attacked Nouvelle France. Their action was merely part of a greater plan to curtail French hegemony in Europe. It is therefore no surprise that the British conquerors were few in number and almost one hundred years passed before English settlers outnumbered (thanks to the American revolution) French inhabitants.

The smell of boiling tea having begun to waft over the New England colonies, London quickly convinced itself, in 1770, that gently keeping French Canadians quiet and turning them into loyal subjects of the Crown should be the primary objective.

British sovereignty over Canada was sealed in 1774 by the Treaty of Paris, but London had agreed to allow the inhabitants to keep their Roman Catholic faith and French civil law. However, the British military refused to be subject to French seigneurial tribunals and it succeeded in obtaining an English court system. The end result was a colony governed by French civil law applied under the authority of English common-law courts of justice.

After the turmoil of the conquest, life continued uneventfully in the colony. French Canadians resisted an American military incursion, confirming London's foresight.

One last historical point before proceeding to the essence of the notarial profession: in 1847, Canada was divided into two parts, namely, Lower Canada (Quebec) and Upper Canada (Ontario). This was done to curtail the power of the larger French population and grant parliamentary government to the English loyalists settlers who were then in the majority in Upper Canada.

In 1866, the Parliament of Lower Canada revoked the old Coutume de Paris by enacting the Civil Code of Lower Canada, a virtual replica of the French Napoleonic Civil Code, which is still considered today to be a legal masterpiece and Napoleon's greatest achievement.

Then in 1867, the British North America Act was adopted by the British Parliament as the constitution of Canada. It united the three maritime colonies of Nova Scotia, New Brunswick and Prince Edward Island with Lower and Upper Canada. Of interest here is the fact that the Constitution gave jurisdiction over the ius commune to the provinces, and all but Quebec then developed English-type common law legal systems.

II. ESSENCE OF NOTARIAL SERVICE

To understand the role of the Latin notary, we must consider a society with an integrated system of legal specialization. Whereas in the United States, there exists only one kind of lawyer for all aspects of law (though most law firms have their specializations), Quebec and European, Latin, and Asian civil-law countries have officially divided their legal professions between advocates, for advocacy or litigation, and notaries, for "non-advocacy," i.e. mainly contractual and non-litigious family matters. Five years ago, France had five divisions of its legal profession.

In Quebec, the notary acts in all areas of the law except litigation. The conveyancing of immovable property ("real estate" in common law) constitutes the major sector of activity at 55%. Like their European and Latin colleagues, Quebec notaries

Lawyer

The Quebec notary is of the Latin type with an LL.L., LL.B., or B.C.L. law degree. The curriculum and options for the first three years of law school are the same for both future notaries and future advocates. The latter leave university for bar school while notarial candidates continue at law school for an additional year of practical studies related to notarial areas of specialization, followed by one year of articling in a notarial law firm, and evaluation, after which the future notary is officially sworn in and admitted to the profession.

Liberal environment

Although the Quebec government delegates publica fides to the notary, the notary is not a functionary or a public servant. He is not on the government payroll and does not operate out of some ministerial or government office.

The notary must set up practice privately, by buying or renting premises and equipment, hiring clerical staff, obtaining proper financing, and assuming both civil and professional liability. In fact, with over 95% of notaries in private practice, either for themselves or working in a notarial law firm, the Quebec notarial profession is probably the most liberal in the land.

Publica fides

Publica fides is, in essence, the power of the state to authenticate or certify. Literally translated, it means "public trust" or "public faith"--"faith" in the sense of the trust people have (or must have) in official papers or acts of the state such as texts of law and court judgments.

In concrete terms, the Quebec notary has the authority to vest with an exceptionally high level of probative value the private documents he prepares, provided he complies with the formalism required by the law. A notarial deed is rarely invalidated by the courts, endowed as it is with the strongest possible presumption of truth. A party attempting to counter this presumption bears a heavy burden of rebuttal through a specific judicial procedure called "improbation." Probative value is justified by the duties (impartial counselling, expert drafting, etc) notaries must fulfil at all times.

The evidential force of a notarial document is not limited to the identity of the parties and whether they have indeed signed the document, but extends to all the facts stated therein, including the date, whether asserted by the parties themselves or seen, heard, and verified by the notary himself.

For instance, back-dating a notarial deed en minute ( the original of which is kept by the notary) is almost impossible, since each notarial instrument or deed must be recorded in an unalterable repertory, and is given a serial number that cannot be changed. If a notary attempts to alter a signed deed, including modifying the date and/or serial number, and is proved guilty, he will be suspended for some years at least and most probably disbarred for life.

Non-litigious matters

The notary in Quebec, as with colleagues in all but a few of the seventy countries where the Latin notarial profession exists, does not represent clients in advocacy or litigious matters. The professional laws governing both notaries and advocates clearly distinguish between two approaches to the practice of law: notaries have the exclusive right to give authenticity to deeds and instruments, and the duty to inform all parties, while advocates take sides and represent one party with the aim of overcoming the adverse party. They have opposing functions because they are answerable to different legal philosophies. The notary, with a duty to inform and advise all parties, acts somewhat as a conciliator/mediator and, when sealing a document, even as a judge. He does not represent a party; he acts for them all, rising above partisan advocacy to ensure the legality of a transaction. The advocate, on the contrary, moves in adversarial surroundings and must make use of talent and professional skills (within the scope of the law) to promote the best interests of his client and obtain victory.

To conclude here, it should be noted that while Romano-Germanic systems of law have confined the adversarial approach to truly litigious cases, the Anglo-American approach has been to extend it to embrace all aspects of law. For example, in the purchase of a house, the vendor and purchaser are theoretically invited to seek independent advice even though an offer to purchase or sell in due form has already been signed; the same is true for financing, etc.

Impartiality

Notaries are prohibited by a code of ethics from being partial to any one party. Favouring one party would necessarily be detrimental to the other, and is contrary to the concept of the notarial institution, the notary being a multi-party counsellor.

It is probably not easy for a person raised and educated in an Anglo-Saxon society, and even harder for a North American lawyer, to believe that a legal professional such as the notary, an impartial private practitioner, does exist and, furthermore, really succeeds in being impartial in his day-to-day work. But the system works!

By impartiality, I do not mean that notaries are neutral, as we would expect mediators and arbitrators to be. The notary must be impartially active in the sense that he must ensure the equilibrium of the parties to a transaction. In other words, he must enquire as to the level of knowledge and understanding of each party and devote his counselling and advice not necessarily equally, but rather so as to place (in so far as possible) all parties on the same level of contractual ability.

Is this merely idealistic theorizing? An answer may be found in one recent court decision involving a notary's professional liability. The notary had prepared a deed of sale of immovable property where the vendor was paid partly with the transfer of a third-ranking hypothec (similar to "mortgage" in common law) on another property.

The notary performed all relevant verifications as to the legal validity of the hypothec, such as the unpaid balances on the previous-ranking hypothecs, property taxes and assessments, insurance coverage, etc, and found everything to be in order. Accordingly, he certified to the vendor that the claim transferred to him by the purchaser was a valid third-ranking hypothec. When the hypothecary debtor later defaulted, leaving no equity to cover the vendor/creditor's claim, the vendor sued the notary, who was held liable by the court on the ground that he had not fully informed the unfortunate vendor, not as to the legal validity, but as to the economic value (i.e. degree of risk) of the claim. The vendor was awarded full payment of the hypothecary claim plus legal costs.

The notary is expected to give legal advice

The giving of legal advice to parties has already been discussed to some extent, but it should be added that giving advice is a notary's duty. It is automatically required where a notary has been asked to complete a transaction. A notary who does not fulfil his duty to inform or advise must obtain a waiver in writing from the party concerned to explain why the notary has been relieved of his professional duty. The reason must be sound, such as the personal knowledge and know-how of that party, or the existence of an independent adviser.

A notary may act as adviser to one client, but in that event, he is not allowed, ethically, to complete the transaction unless all parties, being properly informed of his status as a one-party adviser, expressly request that he draw up the official document. Nonetheless, professional guidelines do recommend that a notary not accept such a request lightly.

Notaries draft legal documents

Drafting legal instruments for consenting parties is at the core of notarial services and is still the hallmark of notaries. The services of notaries (graduates of law school) are retained most often for the preparation and drafting of legal documents and instruments for clients. In Quebec, notaries prepare two types of notarial documents:

Notaries authenticate documents

The function of authenticating is closely linked to the publica fides seen earlier. In short, authenticity means that the document is true, genuine, and must be honoured.

When parties consult a notary, they usually expect authentication, even if not familiar with the concept; the notary must authenticate unless he has valid grounds not to do so.

Authentic instruments, unlike other private writings, have a distinctive and valuable feature, namely, the notary (author) need not testify in a court challenge to one of his documents unless it is set aside for non-compliance with the rules of the formalism. An authentic document is proof in itself and there is normally no point in calling the notary to testify.

Notaries keep records of transactions

Unless a document serves for a short-term purpose, such as the sale of a motor vehicle, the notary must retain the original en minute as aforesaid and keep a record of it in his register. In so doing, the notary ensures to all interested parties that the transaction instrument will always be available and that authentic copies can always be issued. It also ensures a record of the transaction date.

Interestingly, in Quebec, original notarial documents of all kinds, dating back three hundred years to the early days of the colony, can be referred to and consulted by historians and researchers.

Though of Latin origin, the Quebec notarial profession is evolving in a North American business environment. This explains some divergence between it and the international standard of the profession.

Numerus clausus

Contrary to the practice of most Latin-notary countries, the number of notaries in Quebec is neither limited nor linked to a specific number as a function of population. The Netherlands and Puerto Rico are two other examples of countries without restriction as to the number of members in the notarial profession.

No territorial exclusiveness

A notary may exercise his profession anywhere in Quebec, and even abroad if his services involve Quebec residents or if the object of the transaction is situated in the province. Most Latin notarial professions operate on the basis of territorial exclusiveness, although many are now moving away from this restriction.

Bilingualism

A Quebec notary may draft documents in either French or English, at the parties' request. If he also speaks another language, he may record, in an instrument drafted in either French or English, the consent of a person who understands neither official language. This is the typical North American "open-minded" rule.

General considerations

Quebec is probably the most advanced society in the Western World in the organization of liberal professions. Through the Professional Code enacted in 1974, it has imposed a uniform set of rules on all bodies governing professional activities in the province.

The Code provides a general framework for the organization of all professional orders: general meetings, board of benchers, executive committee, officers, voting, inspection committee, discipline officer, indemnity fund, framework for the adoption of specific rules for admission into each profession, disciplinary procedure and committee, processing of complaints, professional liability insurance, etc.

A statute has been enacted for each of the 43 recognized professions, with specific sets of by-laws and regulations, the most important being codes of ethics.

The Chambre des notaires du Québec

The professional order of Quebec notaries is called the Chambre des notaires du Québec, governed by a board composed of 24 regionally elected benchers, 4 non-members appointed by the Office des professions (the supervising body of all professional orders), and a president elected by all notaries directly.

The Chambre is the oldest (or first) organized professional order in Canada, created July 28, 1847, and has always been considered one of the most professionally managed orders. Its organization was the inspiration for the model in the Professional Code.

Particulars of the profession

The notary is a professional under the close supervision of his professional order. To explain that particularity one must bear in mind the unique status of public officer, and further, the importance of his role in handling huge sums of money in trust accounts. Recent gallup polls have shown that notaries, together with doctors (62%), are the most trusted professionals in Quebec society, advocates ranking much lower, at 30% on the public's scale of credibility.

The public's faith in notaries is not surprising, as this profession was the first in Canada to institute periodic compulsory professional inspections (1931), create an indemnity fund (1966), launch semi-annual sessions of continuing legal education (1961) (with attendance at each session averaging 40% of membership), establish liability insurance together with the law society of Manitoba in 1986. I could go on with the list of "firsts." In addition, last March, members were notified that as of January 1998, paper support would no longer be used in communications between the professional order and its members. This indicates how far notaries have gone in computerizing their practice, with their own software-development firm (Notarius) and their own intranet called "Inforoute notariale."

Notaries may serve the public in all sectors of legal activity except, as mentioned, litigation and advocacy, although their traditional activities are in areas where the law has required notarial deeds and instruments.

Conveyancing of immovables

In Quebec, hypothecs must be drafted by notaries, and the conveyancing of immovables and related legal services constitute, on average, 55% of total notarial activities in Quebec. The creation of divided co-ownership (condominiums), for instance, must be effected through notarial deeds en minute.

Wills and successions

The notarial will is the most popular of the three forms of testamentary documents in Quebec, since it does not require probate for validity. It comes into force immediately upon the death of the testator. It is not surprising, then, to find that notaries are very active in the drafting of wills, planning of estates, and settlement of successions. The renunciation of a succession ("estate" in common law), for whatever reason, must be notarial, as well as the transmission of immovable property to heirs or legatees, and proceedings relating to minors or incapable persons.

Taxation and estate planning

Nowadays, many notaries have master's degrees in tax law; a great many have specialized in the field of estate planning and have been instrumental in increasing the popularity of trust wills and testaments.

Commercial law

The establishment, sale, or purchase of a business, the constitution, amalgamation (merger) or reorganization of a company, commercial financing, and trademarks are the daily bread and butter of all notaries practising commercial law.

Other areas of practice

In Quebec, many notaries have developed expertise in various new legal sectors such as international private law, international adoption, maritime mortgage, intellectual property (copyright), telecommunications law, family and commercial mediation and arbitration, etc.

Clearly, notarial services cover a wide range of needs and can easily be adapted to new trends of activity in our ever-changing world.

I have been asked to explain the difference between the Latin notary, on the one hand, and the notary public of the United States and English Canada, on the other hand.

Legal education

Notaries in Quebec receive a full legal education and article before being admitted to the profession, while notaries public are not subject to any prerequisite other than being persons of good reputation with basic educations. As such, the notary public is not a professional but strictly a commissioned clerk.

Legal counselling or advice

Legal counselling is an essential part of the Latin notary's function, while the notary public is neither permitted nor competent to give legal advice.

Lifetime vs short-term appointment

The Latin notary is licensed for life and may be suspended for ethical reasons only. The American notary public's commission expires with time.

Certification authority

The notary public has the power to certify, but his certification has limited probative effect.

The Latin notary is not obliged to testify before a court of justice with respect to notarial instruments unless their authenticity is challenged. Notarial deeds are proof in themselves, prima facie.

In the United States, a notarial seal means that certification is presumed to be authentic and clear, and convincing evidence must be brought to rebut certification. However, this presumption covers only the acknowledgement and genuineness of signature.

The fundamental difference between the two certifications resides in the fact that the notary public's certificate is not deemed to certify or guarantee the facts stated in the document to which it is attached. The notary public's certificate cannot override the hearsay rule; this justifies the exclusion of documents certified by a notary public from in-court testimony.

Fundamental difference between civil law and common law

The last distinction between the powers of certification of the Latin notary and the notary public calls for a few words on the essential philosophical approaches of the civil law and common law systems.

Until recently, the common law was a non-codified set of rules of law issued from the corpus of court decisions. In English tradition, judges pronounce the law and the judiciary adapts the law to cope with evolving society. In such a system, courts are the preeminent agents of law-making and the courtroom is where cases of law must be dealt with; thus the greatest value is given to court testimony.

Another element of this system, an almost complete absence of formalism in contracting, finds its source in the high moralistic values of a puritan society where one's word and a handshake were to be honoured in virtually all instances. Take, for example, the following typically Anglo-Saxon expressions: fair play, gentlemen's agreement, etc.

The civil law approach is found in societies with more secular philosophical values and is predisposed toward the value of writing. For civil law lawyers, testimonial evidence is "seen as temporary and susceptible to many subjective factors that might affect its value. Documentary evidence on the other hand is perceived as more objective and more reliable because it is contemporaneous with the act or accord amongst the parties and because it is prepared prior to the inception of litigation," not to mention the weaknesses of human beings, memory being an example.

In the civil law system, the written word is paramount in judicial proceedings, and the notarial document has been singled out for its particular probative value.

The "judicialization" of American society and the ever-increasing proportion of the GNP of the United States taken each year by the million-plus lawyers south of our border resulted, over a decade ago, in an in-depth examination of the American system of law.

I know of two such initiatives, the first being the creation of the Preventive Law Center of the University of Colorado. A team of professors and lawyers is considering the division of the legal profession and the introduction of a properly educated and trained non-litigious lawyer.

The second initiative is less ambitious but promises to produce quicker results: the creation of the CyberNotary.

In 1993, the Information Security Committee of the American Bar Association, searching for means to certify and secure electronic commerce, found a solution in the Latin notarial profession. The CyberNotary concept was developed and a distinct CyberNotary Committee was created in close collaboration with the United States Council for International Business and the International Union of Latin Notaries.

In short, the ABA committee would like to create another lawyer, distinct from present-day lawyers, with characteristics much like the Latin notary. Their main duty would be to ensure the security of business communications on electronic highways. If the concept materializes, as it may in the near future, the CyberNotary will be the first official specialization in law. Will this model then spread to other jurisdictions?

In 1948, the Quebec notarial profession was one of the founders of the International Union of Latin Notaries, a voluntary association with branches on four of the five continents.

Sixty-two countries are members, i.e. all Western European countries (except Denmark and England), Poland, Hungary, the Czech Republic, all South American countries, Japan, Vietnam, and four African countries. Many others have applied for admission: China, Russia, the Ukraine, Indonesia, and others. In 1985, Quebec was invited by the government of the People's Republic of China to help establish the Chinese notarial profession and is currently sponsoring its admission into the I.U.L.N. Presently, Quebec notaries are helping to establish a Latin notarial profession in the Ukraine. The project is sponsored by the Canadian government, which has participated to the extent of $1 million through a bilateral agreement between the governments of Canada and the Ukraine.

I will end here by adding that the Quebec notarial profession (probably because it has been until very recently a true civil-law island in an Anglo-Saxon sea of common law) is the one notarial organization under the spotlight of the international profession, since with globalization, Latin notaries of other countries are now feeling the pressure of American lawyers' battalions. They urgently need someone to tell them how to survive and develop in a world more and more dominated by American culture in all aspects of life. Now you know who that someone will be!

Footnote

I strongly recommend to those who would like to know more about the Latin notary to read an excellent paper by Notary Pedro A. Malavet in the Hasting International and Comparative Law Review, Spring 1996, entitled: Counsel for the Situation: The Latin Notary, A Historical and Comparative Model.